Federal District Court Judges Research Articles

"Forwards, Not Backwards": How the U.S. Supreme Court May Save the Plight of Individuals with Mental Disabilities.

When federal district court Judge Carlton Reeves penned his opinion in U.S. v. Mississippi,1 the case that seemed poised to overhaul Mississippi's suffering mental health system, he began with the story of Ms. Melanie Worsham, a mental health patient, also a certified peer support specialist. Ms. Worsham works to help those like herself who suffer with lifelong serious mental illness (SMI) to "overcome the obstacles that might be getting in their way of living the life they want to live." She also assists those with SMI by aiding in "navigating the system, to find resources, and then just being moral support."2.

When Advocates Become Adjudicators: Tracing the Effects of Prosecutorial and Public Defense Experience on Judicial Decision Making

We assess the influence professional background – specifically, having been a prosecutor or a public defender – exerts on decision making by federal district court judges. Focusing on search and seizure cases, we analyze nearly 1500 motions to suppress evidence from 2000 to 2022. In addition to controlling for judicial ideology and a judge’s prior experience as a prosecutor or public defender, we utilize matching to address endogeneity concerns related to one’s ability to self-select into one of these positions—which may itself be influenced by that individual’s ideological predispositions. We find that having been a former prosecutor, as well as the length of time that service spans, makes a judge significantly more likely to rule against a motion to suppress. Former public defenders are significantly more likely to grant that suppression motion, though their propensity to do so is not affected by the length of time served in that capacity.

“Better Too Much Than Not Enough”: The Nomination of Women of Color to the Federal Bench

ABSTRACT It is well established that the federal judiciary has been an overwhelmingly White and male institution since its creation and continues to be so today. Even as presidents of both parties have looked to diversify their judicial nominees, this has tended to result in the appointment of White women and men of color rather than women of color. Using data on the confirmed federal district and circuit court judges from presidents Clinton through Trump, we assess how the backgrounds of women of color nominated to the federal judiciary compare with those of other appointees. The results indicate that, compared to White male judges, women of color judges accrue more types of professional experience before their appointments, are more likely to have had prior experience as a judge, and are generally nominated earlier in their careers.

Trump’s lasting impact on the federal judiciary

ABSTRACT Over a single term in office, President Donald Trump appointed three justices to the U.S. Supreme Court, 54 United States Circuit Court of Appeals judges, and 174 federal District Court judges. Those numbers, particularly the 54 courts of appeals judges, rival those of President Barack Obama’s totals (55) over 8 years in office. However, over that same term, Trump was embroiled in numerous controversies and often frustrated his own administration officials’ efforts to enact and implement policy. Trump’s policy failures stand in stark contrast to his success in reshaping the federal judiciary. This article examines that contradiction and argues that at least part of the reason for his success in nominating federal judges lies in the unique judicial selection strategy he embraced; a strategy for which Senate Majority Leader Mitch McConnell and Federalist Society members within and outside of the administration were essential players. This article presents one of the first analyses of Trump’s appointment process over his full term in office, including his unique use of appointment short lists, the confirmation strategy his administration pursued in tandem with Republican Senate leadership, and the lasting impact Trump’s appointees are likely to have on U.S. law and policy.

Medicolegal Sidebar: A Fast Route To A Criminal Indictment-Violating Fraud and Abuse Laws.

Medicolegal Sidebar: A Fast Route To A Criminal Indictment-Violating Fraud and Abuse Laws.

United States of America V. Michael Andrew Gary: Brief of Former United States District Court Judges as Amici Curiae in Support of Respondent

In this amicus brief to the U.S. Supreme Court in U.S. v. Michael Andrew Gary, former federal district court judges Paul Cassell and Nancy Gertner argue that criminal defendants should not be penalized with plain-error review when they fail to raise in the district court objections that circuit courts have uniformly foreclosed. When an intervening change in law renders those once-futile claims viable, appellate courts should treat them as preserved and subject to the corresponding standard of appellate review, not the four-factor test elaborated in United States v. Olano, 507 U.S. 725 (1993). No doubt, claim preservation is important. When defendants raise their objections first in the district court, district judges—who are closest to the case—can avoid or fix errors, thereby sparing (or at least facilitating) appellate review and potentially averting remand or retrial. The contemporaneous-objection requirement and its appellate counterpart, the plain-error rule, also deter sandbagging by defense counsel. But the interests in judicial economy and fairness those rules ordinarily advance are not served when the would-be objection is entirely foreclosed by a circuit consensus this Court later sweeps away. In such a scenario, there is nothing to fix and no tactical advantage to be gained from failing to object. Rigid insistence on claim preservation in those circumstances instead actively undermines efficient judicial administration, as it forces defendants to object at every turn, clogging up cases with kitchen-sink briefs and wasting the resources of already overburdened counsel and courts. It also unfairly rewards defendants whose counsel was either preternaturally prescient or ignorant, undiscerning, or even downright obstructionist, while punishing those whose counsel appropriately focused on arguments that were more likely to succeed.

Kumezo Kawato and “Justice Court”

Kumezo Kawato and “Justice Court” CHARLES J. SHEEHAN The Accident Among the early acts reported in Volume 317 of the Supreme Court Reports was the December 21, 1942, memorial for the late Justice Louis D. Brandeis. Gathered that morning were leading jurists and members of the Court’s bar. The proceedings were called to order by Solicitor General Charles Fahy. His brief remarks recognized the mem­ bers absent, those “called this last year to other tasks and places that need them during the war.”1 Judge Calvert Magruder noted the occasion’s setting “[ajmid the din and distractions of war.”2 Imperial Japan’s fury loosed much of the din. Its baleful reach would deepen the struggle of a middle-aged West Coast working man in the early months of 1942—a story that quietly unfolded in Volume 317. In 1889, Kumezo Kawato was born in the southeast coast city of Ugui, Japan.3 He arrived as a teenager in the United States in 1905 and settled in the Los Angeles area.4 In April 1940, he took work as a fisherman on the “vessel Rally,” with his wages set as a share of the Rally's catch.5 On December 4, the Rally was docked and Kawato, in a small skiff alongside (he was five feet one inch),6 was repairing fish nets hanging from the larger vessel. Suddenly, the skiff was “thrown against” the Rally? Kawato sustained “severe injuries to his left foot and leg,” a fracture, and a wrenched knee.8 Immediate medical care from a physician and surgeon was required. Four months of incapacitation followed. Having paid his own medical bills, Kawato was now unable to support himself.9 In April 1941, Kawato brought suit against the Rally in federal district court. His attorney was Herbert R. Lande, of nearby San Pedro. Lande had practiced in California since 1934.10 He represented injured seamen, and his sometime opponent in these matters was attorney Lasher Gallagher.11 Kawato sought “wages due” ($387) and “mainte­ nance care while ashore” ($264—consisting of $38 in medical expenses and $2 “per day” while unable to work).12 In August, Gallagher answered for the Rally with de­ nials both of responsibility and of federal court jurisdiction.13 In a “SEPARATE AND KUMEZO KAWATO AND THE RIGHTS OF RESIDENT ALIENS 195 Kumezo Kawato was a Japanese-born fisherman who lived on Terminal Island, an enclave of 3,500 Japanese Americans near Los Angeles. Above is a photo of unidentified seamen docked at Terminal Island taken before World War II. SPECIAL DEFENSE,” he asserted that Kawato was a “citizen and subject of the Emperor ofJapan,” and that “no citizen ofthe United States shall pay any ... subject of the said Emperor of Japan.”14 A “Japanese” Seaman The case of Kawato the seaman was not the first encounter between Lande and Gal­ lagher, nor the first in which the two contes­ tants over a seaman’s claim found themselves on the docket of federal district court Judge Leon R. Yankwich. In late 1939, Clarence Robinson, an “ordinary seaman,” had fallen ill after “a voyage to the East Coast and return.”15 Robinson, represented by Lande, was unable to work for several months and sued the ship owner, represented by Gal­ lagher, for lost wages and “maintenance” during convalescence. The owner disputed the diagnosis of malaria. Judge Yankwich rendered a brisk and unhesitating decision on May 17, 1940. Declaring “immaterial” the cause of the illness and finding Robinson “unable to work,” he ruled the seaman “en­ titled to recover his wages to the end of his voyage.”16 The maintenance claim he treated with the same dispatch and awarded “actual costs.”17 Unlike Robinson, Kawato was no “or­ dinary seaman” appearing before Judge Yankwich. The times were far from ordi­ nary. Pearl Harbor still smoldered, its horror acutely raw on the Pacific coast, when the Rally sharpened its rhetoric and characterized Kawato as “a Japanese,” with the United States and Japan “at war.”18 Claiming that 196 JOURNAL OF SUPREME COURT HISTORY The first- and second-generation Japanese-Americans living at Terminal Island were forced to leave their homes in February 1942 and were given...

Movements in the Discretionary Authority of Federal District Court Judges Over the Last 50 Years

From my vantage point, judges’ individual control over their courtrooms remains largely stable. Updated but similar versions of the problems encountered (and created) by Judge Julius Hoffman now confront our newer, younger, and perhaps better qualified judges. While federal judges may be less likely to encounter radical, overtly political defendants and government officials trying to wrest control (and public opinion) from them in court, they are more likely to see minority defendants along with accompanying “courtwatchers” who want inequities in the criminal justice system noticed in individual cases. I will first describe the Chicago Eight (soon to become the Chicago Seven) trial and then explain the new courtwatchers in Part I. On the other hand, I have witnessed federal judges having lost, primarily since the mid-1980s, much of their earlier control over the criminal justice process in general, but in particular over charging and sentencing decisions. Judicial discretion and control over a criminal trial is obviously less important when 97.2 percent of federal felony sentences are imposed by the district judge pursuant to a guilty plea negotiated between the government and the defendant, and only 2.8 percent of the sentences that judges impose are after a jury or bench trial. The power players in the criminal justice system are the folks who determine whether to offer a plea and what plea terms to include. We live in a world of guilty pleas controlled by prosecutors. Federal prosecutors determine whom to investigate, whom to charge, and how much punishment to impose. However, the pendulum has begun to swing back, and federal district judge discretion over criminal sentencing is now on the rise. I will support these observations, as well as offer some good sentencing news post-Booker, in Part II. Finally, in Part III, I will raise a relatively new phenomenon — federal district court judges imposing nationwide temporary restraining orders against the federal government. Though this last trend is not limited to or primarily about criminal trials, I think it fairly covered by the topic for today — most of these injunctions involve controversial policies that can, like with the Deferred Action for Childhood Arrivals case, lead to criminal charges. This legal device allows a single federal judge in a single judicial district to determine federal policy for the entire country, at least until the matter can be resolved by the Supreme Court. This is one of the few areas where I have seen federal district judicial authority expand over the last few decades. The Supreme Court has taken very recent notice of this trend, and will likely have something to say about the matter soon.

Nationwide Injunctions' Governance Problems: Forum-Shopping, Politicizing Courts, and Eroding Governance Structures

Nationwide injunctions — injunctions extending beyond the immediate parties to litigation and beyond the geographic bounds of the issuing court’s mandate — increasingly are used by lower federal courts to stop, alter, or condition the operation of national government policies. This typically occurs at the request of politically-invested officials and groups and targets politically consequential initiatives. While a small number of suits present matters and settings for which nationwide injunctive relief is appropriate, federal district court judges have issued nationwide injunctions in situations far beyond that set. Expanded use of nationwide injunctions — especially broad injunctions against the United States — undermines rule-of-law values, threatens the operation of courts as impartial arbiters of disputes over legal rights, erodes the Constitution’s careful separation of functions among the branches of government, and is at odds with basic aspects of the federal judiciary’s design, including its geographic divisions. Understanding the limited place for nationwide injunctions — where they are appropriate and why, along with what distinguishes the cases where they are not appropriate or even constitutionally permissible — is critical to regulating a practice that portends significant damage to law-making and law-implementing structures and to the carefully cabined role of the federal courts.

Nationwide Injunctions’ Governance Problems: Forum-Shopping, Politicizing Courts, and Eroding Constitutional Structure

Nationwide injunctions — injunctions extending beyond the immediate parties to litigation and beyond the geographic bounds of the issuing court’s mandate — increasingly are used by lower federal courts to stop, alter, or condition the operation of national government policies. This typically occurs at the request of politically-invested officials and groups and targets politically consequential initiatives. While a small number of suits present matters and settings for which nationwide injunctive relief is appropriate, federal district court judges have issued nationwide injunctions in situations far beyond that set. Expanded use of nationwide injunctions — especially broad injunctions against the United States — undermines rule-of-law values, threatens the operation of courts as impartial arbiters of disputes over legal rights, erodes the Constitution’s careful separation of functions among the branches of government, and is at odds with basic aspects of the federal judiciary’s design, including its geographic divisions. Understanding the limited place for nationwide injunctions — where they are appropriate and why, along with what distinguishes the cases where they are not appropriate or even constitutionally permissible — is critical to regulating a practice that portends significant damage to law-making and law-implementing structures and to the carefully cabined role of the federal courts.

Judicial under-representation, over-representation and “catch up”: insights from a study of US district court judges in the 10th Circuit

ABSTRACTThis essay examines the demographics of federal district court judges in the 10th Circuit. Consistent with the literature regarding the glass-ceiling effect in positions of power and influence in the legal profession, the study finds that women judges are under-represented on the 10th Circuit bench compared with their numbers as lawyers in the jurisdictions of the Circuit. However, the study finds that ethnic minority judges are over-represented in the Circuit. The essay next explores the relationship between under-representation, over-representation, discrimination and judicial “catch up”: addressing historical and contemporary under-representation by means of temporary over-representation of qualified under-represented groups on the bench. It argues that under-representation that cannot be explained in terms of merit criteria or informed opting out strongly suggests the lingering effects of past discrimination, as well as the current effects of implicit bias. Such past explicit and present implicit discrimination ought to shift the burden of addressing under-representation to the institutional players involved in the judicial commission process, who should temporarily deploy over-representation to break through the glass-ceiling and catch up the disparity. The feasibility of such a judicial catch up is evidenced by the over-representation of ethnic minority judges in the 10th Circuit.

Younger Federal District Court Judges Favor Presidential Power

From 1960 to 2015, opinions of US federal district court judges (trial judges) in cases involving challenges to executive branch authority show that these judges favor executive authority less as they age. We suggest that district judges know that elevation to the federal circuit court of appeals becomes increasingly improbable, and hence have less reason to cooperate with the executive, with advancing age. Political variables, seniority of judges, and other variables introduced as extra regressors do not reverse this main result, nor does it appear to be the product of cohort effects or selection off the district court. When there are contemporaneous vacancies on their circuit courts, district judges in the 11 state circuits (but not the District of Columbia Circuit) are also more likely to favor the executive.

Immigration Defense Waivers in Federal Criminal Plea Agreements

Immigration policy is back on the American public’s radar screen. The fields of immigration — a civil-law subject — and criminal law — a public- law subject — are quite distinct in both litigation practice and law school curricula. The distinction is becoming increasingly problematic as the subjects continue to intertwine in very practical ways: federal criminal prosecution is now routinely used as part of border enforcement strategy, and interior immigration enforcement is done largely in cooperation with state and local policing. The Department of Justice (DOJ), under a new administration whose goal is to expand and accelerate removal of non- citizens, is taking advantage of this historical division. Intending to have its cake and eat it too, the Trump administration wants to retain the civil aspects of immigration law that most benefit the government (primarily that a non-citizen has no Sixth Amendment right to an attorney at the government’s expense in deportation proceedings), while retaining the aspects of criminal law where the government holds all the cards (namely the coercive aspect of plea bargains that can include waivers of most of the defendant’s substantive and procedural rights). By combining the greatest pro-government interests of both fields, prosecutors are best positioned to reach the current administration’s goal to deport as many immigrants as possible. Although the Authors do not comment on the propriety of this goal, we do take issue with the government’s illegitimate means of achieving it by including waivers of immigration relief and challenges to deportability in criminal plea agreements. This Article focuses on DOJ’s inclusion of waivers of immigration relief in plea agreements for non-citizen federal defendants and proposes some challenges to these waivers. Federal district and appellate judges, immigration judges (IJs), and the Board of Immigration Appeals (BIA) members will find below legal grounds to decline to accept these waivers. Such tools are critical to combat this new federal immigration waiver propensity — which is especially disturbing in light of Attorney General Sessions’ April 11, 2017 Memorandum requiring federal prosecutors to substantially broaden immigration prosecutions, and limiting discretion on whom not to deport. The government seeks waivers of critical rights without giving non-citizen defendants access to the tools and knowledge to make fully informed decisions. In Part I, we review the language of immigration waivers, which widely varies by jurisdiction, and include an appended chart tracking waivers from each U.S. Attorney’s Office that presently requests waivers as part of their standard plea agreements. In Part II, we briefly describe how removal orders are imposed by immigration judges, Department of Homeland Security (DHS) officers, and by federal district court judges, and discuss the effect these waivers will have in those proceedings. The Authors also include a discussion of the potential grounds of relief from removal, such as asylum, withholding of removal, and protection under the Convention Against Torture in conjunction with challenging the grounds for the deportation. Finally, we spend some time on the renewed use of a 1994 judicial removal statute, 8 U.S.C. § 1228. In Part III, we identify five methods for challenging these waivers. We first urge immigrants to demand hearings and to challenge the factual statements contained in the plea waivers. Next, we question the constitutionality of the judicial removal statute. Moving on, we suggest that defense attorneys who advise clients to sign these waivers may be providing ineffective assistance of counsel. Additionally, we note that ethics rules regarding competency prohibit most criminal defense attorneys from advising their clients regarding what immigration rights they are ceding, and similarly, prohibit prosecutors from seeking such waivers. Finally, we argue that public policy and international law obligations may prohibit enforcement of these waivers.

Evaluating the Credibility Using Prior Convictions: An Empirical Study of Rule 609 and Suggestions for Practical Reform

Rule 609 of the Federal Rule of Evidence allows a party to impeach a witness with his or her prior criminal convictions. It is fair to say that this rule is the most criticized of all the Rules of Evidence; scholars have been calling for its reform or outright abolition for decades. These critics argue that the rule relies on propensity evidence which has very little probative value in evaluating a witness’s truthfulness on the stand, and that — especially when used to impeach a criminal defendant — the evidence carries a high risk of unfair prejudice and often prevents defendants from testifying at trial. What has been missing from the debate so far is what is actually happening when judges apply Rule 609 in the courtroom. This article conducts an empirical study of Rule 609 in order to determine how the rule operates in practice. It first presents the results of a survey of law students and federal district court judges to determine how much probative value and unfair prejudice each group perceives exist for different types of prior convictions. The survey finds some differences between the groups, but overall it notes a surprising consensus that crimes of theft have a high probative value for proving lack of credibility, while other types of conviction do not. The article then examines how federal district court judges are actually applying Rule 609 in the courtroom. Contrary to the conventional wisdom, it shows that federal court judges do not routinely admit prior convictions to impeach criminal defendants, and that (consistent with the survey) judges tend to admit theft crimes more often than almost any other type of conviction. The review of district court decisions does indicate some extreme outliers and an unexplained and troubling tendency to admit crimes of drug possession. Thus, the conclusion of the article proposes a modest reform to Rule 609, which encourages the admission of theft crimes to impeach witnesses, but precludes the use of other types of criminal convictions as impeachment evidence.

Do Judges Respond to Incentives? The Effects of the Six Month List

A little known mechanism instituted to improve judicial accountability and speed up the work of the federal judiciary has led to unintended consequences, many of them unfortunate. Federal district court judges are subject to a requirement known as the Six Month List. By law, every judge’s backlog (cases older than three years and motions pending more than six months) is made public twice a year. Since judges have life tenure and fixed salaries, a mere reporting requirement might not influence their behavior. But it does. Using the complete record of all federal civil cases between 1980 and 2017 and a hand-coded sample of summary judgment resolutions, we demonstrate that the List leads judges to close substantially more cases and decide more motions in the week immediately before it is compiled. While average motion processing time is shortened by 10 to 40 days, duration is actually lengthened for some motions (those for which the deadline is least pressing). Moreover, we find suggestive evidence that the List has substantive consequences: in an effort to comply with the List, judges may be making more errors. Theory suggests that giving judges an incentive for faster case processing is probably a mistake. But since this incentive is Congressionally mandated, we offer an alternative mechanism that will limit distortions until Congress acts to relieve the federal courts of this unnecessary burden.

Judge Richard A. Posner's Critique of Testimony by Vocational Experts at Social Security Disability Hearings and How It Affects Disability Claimants in Illinois, Indiana, and Wisconsin

Millions of persons annually file claims for disability benefits from the Social Security Administration. If their claims are denied, the claimants can pursue appeal hearings before administrative law judges. The key issue before the administrative law judges is frequently whether there are a significant number of jobs in the national economy that the claimants can perform, despite their medical problems. To answer this question in an individual case, the administrative law judge often elicits testimony from a vocational expert who, inter alia, estimates the numbers of particular jobs that exist in the economy. If an ALJ determines that there are a significant number of jobs that the claimant can perform, the denial of the disability claim will be affirmed. The claimant can ultimately appeal the denial of the disability claim by the administrative law judge in the federal court system. Judge Richard A. Posner is a judge on the United States Court of Appeals for the Seventh Circuit which hears appeals from federal district courts in Illinois, Indiana and Wisconsin. In a series of appeals decisions involving Social Security disability claims from 2014 through 2016, Judge Posner criticized the reliability of the testimony of vocational experts when they estimate the numbers of particular jobs that exist in the economy. However, federal district court judges and magistrate judges in Illinois, Indiana and Wisconsin have generally interpreted Judge Posner’s critique to be non-precedential and have not relied on it to reverse the denial of disability claims before them. The purpose of this article is to describe Judge Posner’s critique of the testimony of vocational experts at Social Security disability hearings and to examine why this critique has had a limited effect on the decisions on disability claims in district courts in Illinois, Indiana and Wisconsin.

Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups. In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change. These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications. This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences. It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress. This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant. We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range. The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president. Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.

Religious Accommodations for County Clerks?

Rowan County Clerk Kim Davis engendered considerable controversy after she instituted a “no marriage licenses” policy to avoid facilitating the marriages of same-sex couples in conflict with her religious beliefs. Federal District Court Judge David L. Bunning has been overseeing this dispute, which has included intermittent appeals to the Sixth Circuit, and even the United States Supreme Court. What is the basis and strength of her religious freedom claim? Is the only solution to the conflict between her sincerely held religious beliefs and the right of same-sex couples to marry for Davis to resign from her position as county clerk? The likely answer is yes.Davis has used religious freedom arguments to be exempted from issuing same-sex marriage licenses and certificates. She has argued she should not be held in contempt for disobeying a federal court’s order to issue marriage licenses and certificates because her refusal is based on sincerely held religious beliefs. She has also filed a third-party complaint in federal court against Kentucky Governor Steve Beshear and Commissioner Wayne Onkst seeking primarily an exemption under state law from issuing marriage licenses and certificates in conflict with her religious beliefs.Part I of this article places Davis’ legal claims in historical context. Part II discusses the strength of her religious freedom argument. Part III concludes by suggesting how these kinds of claims should be considered in the future. While Davis may have a cognizable claim that her religious freedom is “substantially burdened” by issuing marriage licenses and marriage certificates, it may not be possible for a court to fashion an accommodation under state religious freedom law without unconstitutionally demeaning the marriages of gay men and lesbians.

Judging Responsibility, Responsible Judging

This essay, published in the Twentieth Annual Clifford Symposium, sketches two ways in which Judge Jack Weinstein’s judicial performance raises issues of responsibility. First, it considers how he has deployed responsibility concepts that are central to tort law. Unsurprisingly, it concludes that, in his efforts to do “equity” through mass tort litigation, he has stretched these concepts quite far. This conclusion raises a second set of questions about responsibility — namely, questions about the role responsibilities of federal district court judges. As to these, the essay contends that Judge Weinstein’s tort decisions are consistent with a familiar and plausible account of judicial decision-making. It also notes ways in which he has been especially responsible in his handling of claims and claimants.

The Summary Jury Solution -- Restoring the Seventh Amendment's Constitutional Checks and Balances Protection to the Summary Judgment Procedure in Federal Court

The strength of the United States Constitution lies not only in its delegation of powers to separate branches of the government, but also in its creation of a system of checks and balances that protects the citizens from any one branch of government’s ability to intrude on individual rights. However, with regard to the seventh amendment, this hallowed system of checks and balances has been eviscerated by the use of the summary judgment procedure in federal court.The seventh amendment to the United States Constitution requires that the right to a jury trial in civil lawsuits “shall be preserved”. It states:In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.Despite the clear and unequivocal language preserving the right to jury trial, this right has been significantly diminished by the summary judgment procedure in federal court.The summary judgment procedure allows a federal trial judge to eliminate a jury trial in a civil lawsuit. Instead of a jury trial, the federal trial judge renders judgment by concluding that a reasonable jury would only rule consistent with the judge’s ruling, and therefore, no jury trial is necessary. This summary judgment process is frequently used in federal court and has been the source of vehement ridicule among legal scholars. Most legal scholars that have addressed this issue take the position that the summary judgment process is an unconstitutional violation of the seventh amendment. The United States Supreme Court, however, has held that the summary judgment procedure is not an unconstitutional violation of the seventh amendment.This article takes the position that the seventh amendment requires an inherent checks and balances system that is eviscerated by the summary judgment procedure. This is due in large part to the fact that the very branch of government that violates the seventh amendment’s checks and balances system is the same branch of government that the seventh amendment was designed to check and balance. Plainly stated, the seventh amendment intended that the requirement of a jury trial would allow members of the local community, jurors, to be a check and balance against the power of federal district judges. It is this nullification of the checks and balances system by the federal district court judges that produces the greatest harm to our constitutional structure.Protecting the checks and balances required by the seventh amendment does not require a decree that the summary judgment process is unconstitutional. But it does require creating a process by which the local community is allowed to fulfill its role as a check and balance against federal district court judges. In order to restore the seventh amendment protections to civil trials, the local community must be allowed to participate in the summary judgment process.The solution is to restore the check and balance by adding a civil jury review of a judge’s order granting summary judgment. The civil jury review of the judge’s summary judgment order could be accomplished in a similar procedure to the grand jury used in criminal cases. It could be called a Summary Jury and it could occur during any criminal or civil jury term. The review process could occur by allowing the plaintiff and defendant attorneys an opportunity to orally argue to the jury their positions as to whether the federal judge’s decision granting summary judgment should be upheld. The summary jury would then render a unanimous verdict in support of the decision, which would uphold the decision. Anything less than a unanimous verdict in support of the decision would be a reversal of the court’s summary judgment decision.If this process were employed, it would restore the checks and balances to the seventh amendment, while allowing for a procedure for the court to single out and address frivolous lawsuits. It would wrest from the judiciary the unfettered right to deny the community the opportunity to not only to serve on a jury, but to attend and participate in the process as members of the community.The only way to protect the seventh amendment is to create in the summary judgment process, the checks and balances required by the seventh amendment. The citizens of the community must be allowed to serve on a jury in some capacity during the summary judgment process, and to perform the constitutional function of acting as a check and balance on the federal district court judges in a civil trial.